N.S. makes second attempt at 'vital' cyberbullying legislation

Keith Doucette, THE CANADIAN PRESS
Published Thursday, October 5, 2017 3:22PM ADT
Last Updated Friday, October 6, 2017 8:47AM ADT

HALIFAX -- The Nova Scotia government has narrowed the definition of cyberbullying in a replacement law for pioneering legislation struck down by the province's top court nearly two years ago.

The original Cyber-safety Act, the first of its kind in Canada, was struck down in late 2015 after the Nova Scotia Supreme Court ruled that it infringed on Charter rights.

Justice Minister Mark Furey said Thursday the court ruled the previous law infringed on freedom of expression and violated the principles of fundamental justice by failing to provide notice to respondents.

"That's why it was so important that we introduce a piece of legislation that protects victims of cyberbullying while preserving our fundamental freedoms," said Furey.

He said the proposed Intimate Images and Cyber-protection Act would create civil remedies in cases involving cyberbullying and the distribution of images without consent.

"There is an existing process that would capture criminal behaviour and some civil behaviours. This piece of legislation is intended to close the gap between those two existing elements."

The bill redefines cyberbullying as an electronic action that is "maliciously intended to cause harm" or as an action carried out in a reckless manner "with regard to the risk of harm."

The previous law was passed in 2013 by the NDP government as part of the response to the death of 17-year-old Rehtaeh Parsons, a Halifax-area girl who was bullied and died following a suicide attempt.

Her mother, Leah Parsons, said a new law was "long overdue."

"I'm very glad to see that three justice ministers later it's still a priority and they are going to be bringing it forward," said Parsons. "I realize it takes time, but I'm pleased that it's happening."

Parsons said only time would tell whether the narrower definition would be suitable for the courts and whether the overall law would provide adequate protection for those who are bullied.

"I hope so, because that is what is required right now and that's what a lot of people are missing. They don't feel safe ... it's vital to have this."

Furey said the government's plan is to seek more feedback before passing the legislation next spring, something Parsons said is understandable, but only to a point.

"I was hoping this was coming the spring that just passed," she said. "I'm very anxious to see it in place, but I want it to stick."

Under the new legislation, victims or parents would be able to go to court to obtain a protective order to take down a web page or to prohibit an alleged offender from further contact with the victim.

Victims would also be able to seek dispute resolution through the province's CyberSCAN unit and would be able to seek an order for financial compensation for damages.

However, the act changes the role of the five-person CyberSCAN unit which was created by the previous law.

Previously the unit could act on behalf of victims by pursuing their cases in court, but now it will provide a support function, assisting victims through the process of getting online images or posts removed.

Unlike the previous legislation, parents will not be held responsible for cyberbullying by their children. The law will also require that notice be given to alleged bullies so they can respond to accusations.

Dalhousie University law professor Wayne MacKay, who chaired the province's task force on cyberbullying, said the government consulted him on the new law.

While satisfied with the narrower definition, MacKay said he was concerned the law didn't go far enough in providing possible remedies to victims that could withstand a court test.

Specifically, MacKay said the removal the CyberSCAN unit's investigative function would put the onus for complaints on victims or their parents.

"That raises I think potentially a significant access problem because raising a civil action ... is an expensive business."

MacKay also said there was no reason why the government couldn't pass the law during the current fall session of the legislature, because "there's a pressing need for it now."

The province has been under added pressure to produce something following three student suicides earlier this year in Cape Breton.

But Furey said the government believes it would be prudent to allow an expanded law amendments process through the fall before moving ahead.

"I want to be satisfied that we have addressed those issues and concerns that are important to individuals, families and communities that have been victimized," he said. "I want to ensure that we are diligent and we are thorough."